Underage or not, guerillas who continue taking up arms against the state are 'war machines,' the Colombian defense minister recently stated. But what if they were forcibly recruited?
In late 2019, the Colombian Armed Forces launched an air attack on dissident fighters of the now-disbanded FARC guerrilla army. They bombed a camp in the southern district of San Vicente de Caguán, killing 18 FARC fighters. At least seven of them were minors.
There was uproar in Colombia and the defense minister faced sharp criticism and was forced to resign for hiding the fact that children had been killed. Was it legal, people wanted to know, to bomb a base when it was known that the fighters there included children?
Less than two years later, the country is talking about a similar incident, one that occurred on March 2. The protagonists were the same, with more allegations of the dead including children. The current defense minister, Diego Molano, has defended the attack. He promises that the state prosecution service will determine the exact age of the dead fighters, but adds that the more important point, in any case, is that even if the fighters are underage, they've been turned, by their recruiters, into war machines able to commit terrorist attacks. He said the army had acted in keeping with International Humanitarian Law (IHL).
It's true that the IHL does not expressly outlaw military operations where minors are found to be participating directly in hostilities. But nor does it obligate states to carry them out. In that sense, IHL is closer to a restrictive law, though the decision to launch the attack and its justification are neither solely nor principally a juridical matter.
They've been turned, by their recruiters, into war machines.
Some war atrocities repeat themselves, as do the narratives built to explain them. In fact, this debate is closely tied to another that has been present for decades in the Colombian conflict: Can members of illegal armed groups, whether children or not, be considered victims?
Instead, they're usually considered perpetrators of the violations associated with the group to which they belong. Certainly some members of the group are responsible for such violations, as the Special Jurisdiction for Peace and the Truth Commission will help show. But the idea evades the fact that in the Colombian conflict, there were numerous cases of forced recruitment of minors and of sexual violence, among other acts of violence, committed against them.
Nov. 1 protest in front of Bogota's Supreme Court demanding peace accords be respected — Photo: Sebastian Barros/NurPhoto/ZUMA
Various occasions international and national laws have indicated that the same person can, at different times, be both victim and a perpetrator of criminal acts. For example, the Law of Victims ("La Ley de víctimas') stipulated that members of illegal armed groups could only be considered victims if they had demobilized while still underage. The stipulation, which was little debated as the law was processed, was confirmed by the Constitutional Court with the argument that while members of such groups can be victims of human rights or IHL violations, it was legitimate for the state to limit the reparations allocated to them in the law, and it could exclude them payments. That is, these will not receive reparations pursuant to the Victims law though legally speaking, they are considered both victims and perpetrators of IHL violations.
Can members of illegal armed groups, whether children or not, be considered victims?
In spite of this coincidence, victims and perpetrators are frequently spoken of as opposites. This is implied by Defense Minister Molano's comments on children becoming "war machines," though his words go further by dehumanizing the children. From perpetrators, they have become instruments.
This description has its use: It distracts from issues like loss of human lives, the age of the dead, the possibility that they were forced into the conflict or the precarious socio-economic conditions of their families. Being war machines, the military option against them is not just legitimate but inevitable. There is no need to say more on what the state must do to rectify this injustice, beyond blaming — rightfully, it should be said — all those who have dehumanized these children.
*Juan Camilo Rivera is an attorney, currently studying for a Ph.D. in law at the University of Harvard.